More Hoax Busters!

Defensive Medicine Doesn’t Lead To Unnecessary Medical Treatment

For every injury or illness, there are a range of possible treatments. The (very crude) drawing below represents that range. At the left end of the scale is to “do nothing” and see if the injury gets better on its own. At the far right end of the scale is immediate surgery to try and correct the problem. The bracket in the middle represents treatment within the permissible standard of care for a hypothetical injury. For this hypothetical injury, it would be inappropriate to do nothing, and it would also be inappropriate to take the patient to surgery immediately. Medically appropriate treatments might include administering drugs, ordering an inexpensive diagnostic test, and ordering an expensive diagnostic test. Doctor Smith may be conservative with his treatment and decide to order an inexpensive diagnostic test, while Doctor Jones may be aggressive and order the administration of drugs and the expensive diagnostic test. While both doctors treated the same injury in different ways, neither doctor committed malpractice. More importantly, if Doctor Smith is afraid of being sued and orders the expensive test, we cannot say that his fear of being sued led him to order a medically unnecessary test. The worst we can say is that the tort system nudged the doctor towards being more cautious.

Myth Busters!

The Great Hoax: Tort Reform, Better Healthcare

Myth No. 1: Rising healthcare costs can be tied to malpractice claims

According to the most reliable of sources, the projected costs of healthcare spending in 2009 were approximately $2.5 trillion – with a T. Of that, even including the costs of insurance premiums – figures that other studies have conclusively shown to be inflated without being tied to actual claims experience – the amount assignable to malpractice litigation is a mere 2 percent of the total.

The claim of inflated expenses due to so called defensive medicine, tests designed to get at the root of a problem and ensure for the patient as accurate a diagnosis as possible, are immeasurable and cannot be properly brought into the discussion without resorting to wholesale speculation.

Myth No. 2: Madison County-Judicial Hellhole

Reality sometimes intrudes on fantasy, and this is one sure case. Contrary to the popularly held belief, the Courts of Madison County have been among the most hostile to malpractice Plaintiffs in the State of Illinois. Case filings are down dramatically, even while announcements of new arrivals of physicians, the opening of hospital wings and the expansion of oft times competing specialty services fill the newspapers.

Truth be told, with the current litigation climate and juror attitude, no place is more hospitable to the negligent hospital or the clumsy surgeon than the Courts found in Edwardsville.

Myth No. 3: Malpractice premiums can be related to claims filed

Doctors in the Metro East have been consistently abused by their own captive insurance carrier, the Illinois State Medical Insurance Exchange – (ISMIE). Rates were set without regulation, and were naturally raised without remorse. Rather than focus on the real culprit, the strawman of the “frivolous lawsuit” – truly a myth given the oppressive costs involved for any such case – was created to deflect attention.

More on Tort Reform

Limits are unfair to malpractice victims

The fact is that the positive climate for doctors has resulted from strong, long suppressed insurance reforms, which were included in the legislation. That law has forced malpractice insurance companies to provide greater transparency on rate-setting and payouts that has, in turn, spurred competition, motivated more companies to enter the marketplace, and lowered premiums for doctors. Important to the discussion is the additional fact that Illinois’ largest malpractice insurer has reported that payouts have remained flat for the past 13 years. That same insurance carrier admitted in legislative hearings in 2005 that capping awards would not guarantee lower premiums for doctors.

Surprise! Unapproved Product is Unsafe.

One thing I have a difficult time in apprehending is how is it that unapproved drugs and solutions can find their way into the market place so easily? Isn’t the purpose of the Food & Drug Administration to oversee and make sure that food and drugs sold in the market are safe before they are found to be unsafe? It does not take much to know a product is unsafe when people have been hurt… Unless people are used in the testing of a product placed into the market place all with the FDA’s blessing.

All this just does not make sense to me.

Unapproved Eye Solution, Papain Drugs Cited by U.S.

The U.S. told companies to stop selling certain unapproved drugs used to irrigate eyes during surgery and to treat lesions such as diabetic ulcers, saying dangerous side effects had been associated with both products.The Food and Drug Administration warned it may act against companies that continue to sell ophthalmic balanced salt solution for the eyes and topical drugs containing papain, drawn from papayas, without regulatory approval, the agency said today in a statement.

After years of devoting few resources to unapproved drugs, FDA officials in 2006 said they would begin to crack down on the medicines. The agency has estimated they account for about 2 percent of prescriptions.

Companies selling unapproved versions of the eye drug and lesion treatment “have bypassed the requirement of the law and put consumers at risk,” said Deborah M. Autor, director of the FDA’s drug compliance office, on a conference call with reporters.

Unapproved versions of the eye drugs have been sold by Deerfield, Illinois-based Baxter International Inc., Lake Forest, Illinois-based Hospira Inc. and B. Braun Medical Inc., part of B. Braun Melsungen AG, a closely held company based in Melsungen, Germany, according to the FDA.

Helping Legal-Aid

Chicago Bar Foundation initiative to help legal-aid organizations

More than 20 local law firms have joined a new Chicago Bar Foundation initiative to support legal aid and pro bono efforts.”Law Firm Leadership Circle” membership requires firms to commit to several goals, including encouraging attorneys to annually complete at least 35 hours of pro bono work and donating at least $300 a year per attorney to legal-aid organizations.

The circle expands on the Chicago Bar Foundation’s efforts to ensure access to the justice system. There are fewer than 300 legal-aid attorneys who serve more than 1 million low-income residents in the Chicago area.

Last year, the foundation launched a fundraising campaign to supplement the incomes of legal-aid attorneys, collecting about $900,000 from law firms and corporations. This year’s campaign will be led by Dan Webb, chairman of Winston & Strawn.

New Radeon Law

New Radeon Law Requires Info Before Sale

Starting Jan. 1, when a buyer and seller sign a contract on residential real estate property in Illinois, the new Illinois Radon Awareness Act now applies to the sales transaction.According to the new law, the seller must supply the buyer with two documents before the buyer will become bound on a contract to purchase the property. One is a pamphlet from the Illinois Emergency Management Agency, “Radon Testing Guidelines for Real Estate Transactions.” The other is a form to sign called “Disclosure of Information on Radon Hazards.”Radon is an odorless, tasteless gas. It is formed from the radioactive decay of uranium, which is found in small amounts in most rocks and soil. Exposure to high levels of radon results in an increased risk of lung cancer, according to the IEMA.“The new radon law applies to residential properties from single-family homes to four-unit buildings,” said Kay Wirth, president of the Illinois Association of Realtors.The new law does not require sellers to test for radon in the home or to reduce the concentration if elevated levels are found. The seller and buyer may negotiate whether further testing or remediation are necessary. In most cases, a seller will simply provide the two documents to the buyer before the contract takes effect.If you have a contract pending that was signed before Jan. 1, the law does not apply.

Trinity Taking Swing at MRSA

Quad-Cities Online

rinity Regional Health System is implementing a plan to test more patients for a drug-resistant staph bacteria with hopes of eradicating it from its hospitals.

The germ is called MRSA, or methicillin-resistant Staphylococcus aureus. A new Illinois law requires hospitals to test intensive-care unit patients for the bacteria.

Carol Dwyer, who has a master’s degree in nursing and is Trinity’s vice president of hospital operations and chief nurse executive, said the health system this week expanded its testing to include the Terrace Park campus in Bettendorf, although Iowa does not have a law requiring it.

“Trinity came forward as a health care organization informing and educating the community about what MRSA is, how you get it, how to prevent it, how it’s treated and where it really originates,” Ms. Dwyer said.

Is Water Considered Soft Drink?

Chicago sued over bottled water tax

The Chicago City Council on Jan. 1 imposed a first-in-the-nation 5-cent tax on bottled water sold in the city in the hopes of decreasing plastic waste and generating $10.5 million in revenue, the Chicago Sun-Times reported Saturday.

The lawsuit says the tax is illegal because it evades a state law prohibiting taxation on food consumed away from the establishment of purchase.

The suit states bottled water is not classified as a soft drink and should be therefore considered in the same group as milk, sports beverages and teas, a group not subject to tax.

In the Trenches Fighting for Justice

A Small Firm Wages ‘100 Years’ War’ on Tort Reform

Attorney Robert Peck and his nine law firm partners at the Center for Constitutional Litigation in Washington look like average plaintiffs lawyers when they walk into courtrooms around the country, but they’re not.

They are the lawyers to trial lawyers nationwide, fighting “tort reform.” The center’s attorneys are on retainer for the trial lawyers’ trade group, the American Association for Justice (formerly the Association of Trial Lawyers of America) and pursue cases to overturn state and federal laws that they allege rob Americans of legal redress.

The center’s attorneys have 40 cases pending across the United States in which they are helping plaintiffs challenge government limits on tort claims, such as state caps on medical malpractice damages and federal legal immunity for rental car companies and gun manufacturers.

“We are often in a case because there’s some impediment to having your day in court,” Peck said.

Some Good News

Judge Larson’s decision was right on target.

The interesting thing about the brouhaha surrounding her decision is that in all the articles I have read, there is all this talks about the hospital interest and the doctors’ interest groups that appear to be fighting for this law. There is absolutely no talk about the insurance industry who is pulling the strings from behind the scenes in all this.

As if the trial lawyers are once again pinned against the doctors and hospitals.

From my talks with doctors I know, this strategy is no longer working–at least so far as the doctors are concerned. They have become wise to the fact that the insurance companies have worked hard to force the doctors and lawyers to be adversaries while they seat back and laugh all the way to the bank by gouging the doctors and blaming it on the trial lawyers.

If only the Sun Times and other publications were to bring the truth to their readers…

Judge strikes down Illinois malpractice caps

Cook County Circuit Court Judge Diane Joan Larsen on Tuesday sided with plaintiffs’ argument that the caps on non-economic damages such as pain and suffering in medical malpractice cases violate victims’ rights.The Illinois Hospital Association said in a statement it was disappointed in the verdict but it is confident an appeal to the Illinois Supreme Court will successfully uphold the caps.

[…]

Those caps came after a lengthy, intense debate two years ago over how
to help doctors deal with soaring malpractice insurance rates. The caps
were a cornerstone of the aid lawmakers provided after feeling enormous
pressure from doctors and upset patients to prevent more doctors from
leaving the state.

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$35.5 Million in Wrongful Death Case

The doctors may also face criminal charges for their part in causing the death of at least two of their patients (including the one subject to the wrongful death suit) and injuring others.

Oakland County physician Aeneas Guiney has been ordered to pay $35.3 million after a jury decided he was responsible for the death of a patient .

Daily Tribune

(via Jury Awards $35.3 Million in Michigan Wrongful Death Case )

MRI Better in Detecting Breast Cancer

Screening MRI had a higher rate of breast cancer detection than either mammography or ultrasound screening in high-risk women, but it nearly quadrupled the biopsy rate, researchers here found.

The diagnostic yield was 3.5% with MRI, 1.2% with mammography, and 0.6% on ultrasound, reported Constance D. Lehman, M.D., Ph.D., of the University of Washington, in the August issue of Radiology.

"Although the specificity of MRI was lower than that of mammography or clinical breast examination (89.8%, 95.0%, and 98.1%, respectively), the overall accuracy of MRI was significantly higher," wrote Dr. Lehman and colleagues.

In their multi-center study, investigators compared the three screening modalities in 171 asymptomatic women who were confirmed carriers of a BRCA1 and/or BRA2 mutation or had at least a 20% chance of carrying the mutation.

MRI Beats Mammography or Ultrasound at Detecting Breast Cancer

All It Took Was a Cup of Coffee

In a recent experiment, psychologists at Yale altered people’s judgments of a stranger by handing them a cup of coffee.

The study participants, college students, had no idea that their social instincts were being deliberately manipulated. On the way to the laboratory, they had bumped into a laboratory assistant, who was holding textbooks, a clipboard, papers and a cup of hot or iced coffee – and asked for a hand with the cup.

That was all it took: The students who held a cup of iced coffee rated a hypothetical person they later read about as being much colder, less social and more selfish than did their fellow students, who had momentarily held a cup of hot java.

Findings like this one, as improbable as they seem, have poured forth

Who’s Minding the Mind? (via The New York Times)

Nike Settles Discrimination Suit

Nike Inc. has reached a $7.6-million settlement in a class-action race discrimination lawsuit filed on behalf of 400 black employees of the company’s Chicago Niketown store, the company said Monday. The lawsuit, filed in 2003, claimed managers at the retail store used racial slurs to refer to black workers and customers. They also said the store segregated black employees into lower-paying jobs as stockroom workers and cashiers rather than giving them lucrative sales jobs. And they alleged managers made unfounded accusations of theft against black workers and directed store security to monitor black employees and customers because of their race. Nike has denied the allegations.
Chicago Business News, Analysis & Articles | Nike settles discrimination suit over Chicago Niketown | Crain’s

(via Chicago Business News, Analysis & Articles | Nike settles discrimination suit over Chicago Niketown | Crain’s )

Worker’s Compensation

Workers’ compensation is a no-fault system of benefits paid by employers to workers who experience job-related injuries or diseases. The Commission operates the state court system for workers’ compensation cases. A case is first tried by an arbitrator, whose decision may be reviewed by a panel of three commissioners.

Tort Immunity

Lawsuits Against Va. Tech Face Hurdles

RICHMOND, Va. (AP) – Five years before the massacre at Virginia Tech, a deeply disturbed student went on a murderous rampage at the Appalachian School of Law, killing three and wounding three others.

Some victims and family members sued the law school and eventually settled for $1 million. Similar lawsuits are virtually certain after the Virginia Tech shootings, but legal experts say it could be very difficult to win damages.

The gunman in the law school shooting in Grundy, Va. _ graduate student Peter Odighizuwa _ had been diagnosed with paranoid schizophrenia.

Plaintiffs claimed in their $23 million lawsuit that school officials ignored a pattern of threats and disruptive behavior that should have warned them Odighizuwa _ who had been diagnosed with paranoid schizophrenia _ was dangerous.

Like Odighizuwa, who is serving six life terms, the Virginia Tech gunman, Seung-Hui Cho, had displayed aberrant behavior that some say should have been recognized as warning signs.

Along with the similarities in the two cases, however, there is one significant difference: While the Appalachian School of Law is a private institution, Virginia Tech is a state school and therefore enjoys a level of immunity.

How much immunity is a question that likely will be tested in court.

“When plaintiffs’ lawyers get a hold of this, people may be surprised by their creativity,” said Ashley Taylor, a former deputy attorney general who represented the state’s colleges.

The state, its institutions and employees are largely protected from civil lawsuits by “sovereign immunity” _ a doctrine rooted in a monarchical tradition that allowed grievances against the king only if he said it was OK.

“We do not expect perfection out of our government,” said David N. Anthony, chairman of the Virginia Bar Association’s civil litigation section. “Our government can make mistakes. If they do, we can’t recover from them unless it falls into a category where they say we can.”

Virginia’s government has waived sovereign immunity in a limited fashion through the Tort Claims Act, which permits damages of up to $100,000 for bodily injury caused by the state’s negligence.

Anthony said sovereign immunity will make it exceptionally difficult for anyone to successfully sue the state for more than that.

Deposition Checklist

Here is a good book to read in preparation of your next deposition:

Use the outlines and pattern questions in Deposition Checklists & Strategies to avoid omissions, improve your advocacy, and handle unfamiliar areas with confidence.